Mr Justice Eady has today refused to set aside the gagging order (privacy injunction) preventing busty Big Brother contestant Imogen Thomas and The Sun from revealing the identity of the Premier League footballer Thomas had claimed to have had an affair with.
The judge was clearly not impressed or convinced by Thomas’ tales and used the judgment as a platform for clarifying the judicial application of privacy law and – worryingly for the wannabes and tabloids that feed from it – the future of the ‘Kiss and Tell’. Mediabeak will examine Eady’s espousing on privacy and kiss’n’tell deathknell in a separate post (to spare those more interested in Thomas’ tittle tattle than the legals).
Back to the facts and its appears Thomas had met the footballer in question – who legal papers refer to simply as ‘CTB’ – on three occasions in September, November and December last year (although she claims she had a six month ‘affair’ with him). It is not clear what exactly took place at these previous meetings but fast forward to April this year and Thomas got in contact with CTB again and apparently – though this has been denied on her behalf by her latest legal counsel David Price QC – sought to elicit money from CTB and/or tell/sell her ‘story’.
CTB agreed to a couple of meetings at which it appears Thomas didn’t get the £50k or £100k it had been suggested she was after but did get a signed football shirt and a couple of match tickets.
By this stage CTB had worked out that – suggestions of blackmail aside – he could be the subject of a kiss’n’tell/sell set up. Although Thomas has denied collaboration with the papers (The Sun and apparently Mail on Sunday and Sunday Mirror) arranging to meet him under pretext of ‘needing money’ or to get a signed shirt does provide the press with a wonderful photo opportunity.
So the suggestion is there (though as stated it has been denied on her behalf) that having failed to get more than a football shirt for not telling about any ‘kiss’ (or more) there may have been, the next option for Thomas to try would be to sell the story to the eagerly awaiting tabloids – something discussed in and that appears to have been factored into Mr Justice Eady’s reasoning and decision.
In deciding to continue the injunction the Judge balanced the competing rights to privacy and those of Thomas’ (and the papers) right to free expression. He considered that whatever the nature of CTB and Thomas’ previous meetings, these had been private and not something done or discussed in public. He also considered that the right to privacy extended to CTB’s family and as such, in the circumstances, CTB did have a protectable right to a reasonable expectation of privacy.
In relation to Thomas’ and The Sun (+ other papers) rights to freedom of expression, Eady considered that such right is designed to protect the public from being seriously misled and being informed of information in which they have a legitimate public interest. In making it clear that all that interests the public may not necessarily or demonstrably be in their real or legitimate interest, Eady concluded that the ‘kiss’n’tell’ that Thomas and/or The Sun would be able to freely express if the injunction were lifted would not help achieve some legitimate social interest (as the underlying human rights laws and cases have intended and described).
He therefore ruled today that the gag over Thomas and the press remains until such time as a trial of the issues may reveal more facts and/or the case can be fully assessed in light of those facts.
How the gag and the law work
As happened in this case, a claimant – CTB – can seek an injunction from the courts to prevent publication of material that they consider would be harmful – invade their privacy or defame them etc – under the UK Human Rights Act, Section 12 provides that where a court is being asked to grant any relief (i.e. an injunction) that could, if granted, affect (restrict) the European convention right to free speech then:
Under Section 12(3) – no such injunction should be granted unless the court is satisfied that the claimant (CTB) would be likely to establish that publication of the story would be similarly banned when the case came to a full trial.
Under Section 12(4) – with specific reference to what appears to the court to be ‘journalistic, literary or artistic’ material, (it was certainly journalistic in the tabloid sense and arguably one could suggest that Thomas’ version of events would count as a literary work - fictional if not factual) the extent to which:
(i)the material has, or is about to, become available to the public; or
(ii)it is, or would be, in the public interest for the material to be published;
Clearly in this case with The Sun poised to publish the material was very much ready to be made available to the public BUT as Mr Justice Eady decided, it could not be regarded as material that would be in the public interest to be published.
How the law and the gag don't work
The injunction applies to publication in or controlled from England and Wales so publications in other jurisdictions are not covered by this. We've seen the furore over the potential of Twitter to make a mockery of the much maligned superinjunction in the past week and this case is no different - aside from the speculation across cyberspace, it did not take long for a foreign publication and Twitter to identify the footballer. Were Mediabeak to publish a link to the readily traceable sites in question then that (as Mediabeak is currently in England) would in line with the judgments in Jameel and other cases, be in breach of the injunction. So to the extent that an injunction can gag in England and Wales it does not extend to those tweeting or uploading posts in or onto foreign sites. Indeed as more often happens in such cases, the gag itself draws reporting interest and the attendant publicity of the fact there is a gag then spills across geographical borders to freeflow on the internet.
In today's exploitative and parasitical world what may judicially be regarded as a legitimate expectation of privacy translates into a reasonable liklihood of exposure.
If you don't want anyone to tell then the safest bet is not to kiss. If footballers and reality TV 'stars' don't want to play their private lives by the book then they can't come complaining to court or as Thomas has done today, complain about court and expect judges to create the laws around your behaviours. As Mr Justice Eady reminded, the judges are not making the law, they are applying it.
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